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HQ 557825




March 15, 1994

CLA-2 CO:R:C:S 557825 WAS

CATEGORY: CLASSIFICATION

TARIFF NO.: 9811.00.60

Mr. David R. Loeser, Jr.
Chase, Leavitt CHB, Inc.
24 Griffin Way
Chelsea, MA 02150

RE: Marking of footwear imported as samples under subheading 9811.00.60, HTSUS

Dear Mr. Loeser:

This is in reference to your letter dated February 18, 1994, on behalf of Cole Haan Footwear & Accessories ("importer"), concerning the proper marking of footwear imported as samples under subheading 9811.00.60, Harmonized Tariff Schedule of the United States (HTSUS). A sample of the merchandise was submitted for review.

FACTS:

You state that the sample merchandise consists of footwear imported for use as samples for soliciting orders for foreign-made products which are entitled to free entry under subheading 9811.00.60, HTSUS [formerly 860.30, Tariff Schedules of the United States (TSUS)]. You state that the footwear has the word "sample" embossed in the sole. You claim that to mark the footwear in any other way (i.e., drilling a hole through the sole, cutting the upper, etc.) would drastically affect the appearance of the shoe. It is your position that footwear that has been altered/damaged by means of drilling or cutting holes in the shoe is not conducive to the salability of the product. The importer has advised that they can move the "sample" embossment on the sole, or enlarge it, or add "not for resale" to the shoe as needed. In addition, the importer has stated that an affidavit certifying that the footwear is not for resale and is used for soliciting orders only may be included with each shipment of sample footwear.

ISSUE:

Whether the words "Sample Not For Resale" embossed on the sole of the footwear is sufficient to satisfy the requirements for free entry under subheading 9811.00.60, HTSUS, when imported into the U.S.

LAW AND ANALYSIS:

Subheading 9811.00.60, HTSUS, provides for the free entry of samples which are either valued at less than $1 each, or marked, torn, perforated, or otherwise treated so that they are unsuitable for sale or for use otherwise than as a sample, to be used in the U.S. only for soliciting orders for products of foreign countries. The controlling factor is whether the importer uses the samples for the purpose of soliciting purchase orders of foreign made merchandise and the creation of demand for future orders.

In Headquarters Ruling Letter (HRL) 555552 dated August 10, 1990, we held that non-quota footwear imported for sample use may either have a 1/4 inch hole drilled in each sole or a label with the words "Sample Not For Resale" permanently attached to a readily visible place in order to qualify for free entry under subheading 9811.00.60, HTSUS, provided the district director is satisfied that such treatment renders the shoes unsuitable for use for any purpose other than soliciting orders for foreign merchandise.

In an earlier ruling regarding the proper marking of footwear imported for use as samples, HRL 056847 dated October 25, 1978, Customs held that an importer may opt to indelibly stamp the merchandise "Sample Not For Resale" on the sole of a shoe, rather than punching or drilling a 1/4 inch hole in the sole or heel of the shoe, and that this marking would be "conspicuous" and in accord with the intent of item 860.30, TSUS See also HRL 557460 dated September 29, 1993 (holding that stamping the legend "Sample Not For Resale" in indelible ink or gold leaf onto the lining of the shoe or embossing this legend onto the upper leather of the outside heel area is sufficient treatment under subheading 9811.00.60, HTSUS.)

In the instant case, based upon HRLs 555552, 056847 and 557460, we believe that the proposed marking of the sample footwear by means of embossing the sole of the shoe with the visible legend "Sample Not For Resale" in a contrasting color as shown on the sample submitted with your ruling request is sufficient to render the footwear suitable only for soliciting orders for foreign articles as required by subheading 9811.00.60, HTSUS. Thus, provided that the legend cannot be removed without disfiguring the soles of the shoe and the legend is stamped on the sole in close proximity to the heel so that the ink will not likely wear off, the footwear samples may enter into the U.S. free of duty under subheading 9811.00.60, HTSUS.

HOLDING:

The footwear imported for sample use which has the marking "Sample Not For Resale" embossed on the sole of the shoe in a readily visible place may qualify for free entry into the U.S. under subheading 9811.00.60, HTSUS, provided that the legend cannot be removed without disfiguring the soles of the shoe and the legend is stamped on the sole in close proximity to the heel so that the ink will not likely wear off.

Sincerely,

John Durant, Director
Commercial Rulings Division

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